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Chetu and anr. Vs. Collector and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtHimachal Pradesh High Court
Decided On
Case NumberCivil Misc. Petn. No. 117 of 1964
Judge
Reported inAIR1966HP46
ActsConstitution of India - Article 133(1)
AppellantChetu and anr.
RespondentCollector and ors.
Appellant Advocate Sarvshri Hira Lal and; Kirti Ram, Advs.
Respondent Advocate Jai Chand, Govt. Adv. for No. 1 and; D.N. Pathak, Adv. for Nos. 2 to 5
DispositionPetition dismissed
Cases Referred and State of Punjab v. Sodhi Sukhdev Singh
Excerpt:
constitution - certificate of fitness - article 133 of constitution of india - appellant land acquired for construction of colony - compensation rewarded by respondent with respect to acquisition - appellant filed objection claiming 2/5th share of compensation on ground that acquired property was joint family property - 2/5th share of compensation deposited by respondent in court - appellant filed petition contending that respondent should have deposited whole amount to court which was rejected - appellant filed petition under article 133 for grant of certificate - decision of court does not fell under purview of judgment, decree of final order as it did not determined right of parties in respect of compensation - held, appellant not entitled to get certificate of fitness to appeal..........on behalf of the respondents, was that neither the proceeding, in the previous petition, was a civil proceeding nor the order, dated 31-7-64, passed by this court, in the previous petition, was a judgment, decree or final order, within the meaning of article 133(1) of the constitution the learned counsel for the respondents cited collector of monghyr v. maharaja pratap singh bahadur. air 1957 pat 102 (kb), in support of his contention, that a proceeding, for the issue of a writ, under article 226 of the constitution, is not a civil proceeding. it was laid down in that authority: 'the jurisdiction of the high court under article 226 is an extraordinary jurisdiction vested in the high court not for the purpose of declaring the civil rights of the parties and for the purposes of.....
Judgment:
ORDER

Om Parkash, J.

1. This is a petition, under Article 133 of file Constitution of India The fads, giving rise to the petition, are as under;

2. Land, situated in Parana Nagar, Sundar Nagar. District Mandi some of which was under the proprietorship, and some under the tenancy, of Dagu respondent No. 2, was acquired, under the provisions of the Land Acquisition Act, for the construction of Beas-Sutlej-Link Colony The Collector, respondent No. 1, awarded compensation with respect to the acquisition of the land. The petitioners filed objections against the award of the Collector, claiming 2/5th share in the compensation, on the ground that the land acquired was joint Hindu famih property of the joint Hindu family, consisting of Dagu respondent No.2 and his four sons the two petitioners and respondents Nos. 4 and 5.

2a. The petitioners had also instituted two suits, against respondents Nos. 2 to 5, in the Court of the Subordinate Judge, Sundar-nagar. In one of the suits, the petitioners had challenged an alienation, made by Dagu respondent No. 2, in favour of Smt. Rukmani respondent No. 3 In the second suit, the petitioners had claimed partition of the property, which according to them, was joint Hindu family properly tn both the suits, temporary injunctions were issued prohibiting the Collector from making payment of the compensation of the land, acquired, to respondents Nos. 2 to 5. Subsequently, the temporary injunctions weremodified to the extent that the prohibition against payment was to operate against 2/5th share of the compensation, only.

3. The objections, filed by the petitioners, against the award of the Collector, wore referred to the Court for determination. The Collector, also, deposited, in the Court, 2/5th share of the compensation, which had not been paid to respondents Nos. 2 to 5.

4. The petitioners filed a petition, in this Court, under Articles 226 and 227 of the Constitution of India, against the order of the Collector. Many grounds were taken up in the petition But at the time of arguments, the only ground canvassed was, that the Collector, respondent No. 1, was in error in depositing only 2/5th share of compensation and that he should have deposited the whole amount of compensation, when referring the objections to the Court. The petition was rejected, by this Court, by its order, dated the 31st July. 1964. This Court held that as the petitioners had claimed only 2/5th share of the compensation, and not the whole of the amount, the Collector was bound to deposit, under section 31(2) of the Land Acquisition Act, only 2/5th share, and not the whole amount of compensation, and that the action of the Collector in depositing only 2/5th share of the compensation was not illegal.

5. The petitioners have filed the present petition, under Article 133 of the Constitution, for the grant of a certificate that the case is a fit one for appeal to the Hon'ble Supreme Court.

6. The petition has been opposed on behalf of the respondents.

7. The learned counsel for the parties nude statements, on 24-9-65, that 2/5th share of compensation, claimed by the petitioners, amounted to Rs. 27,402.10 P.

8. The ground, on which the petition was opposed, on behalf of the respondents, was that neither the proceeding, in the previous petition, was a civil proceeding nor the order, dated 31-7-64, passed by this Court, in the previous petition, was a judgment, decree or final order, within the meaning of Article 133(1) of the Constitution The learned counsel for the respondents cited Collector of Monghyr v. Maharaja Pratap Singh Bahadur. AIR 1957 Pat 102 (KB), in support of his contention, that a proceeding, for the issue of a writ, under Article 226 of the Constitution, is not a civil proceeding. It was laid down in that authority:

'The jurisdiction of the High Court under Article 226 is an extraordinary jurisdiction vested in the High Court not for the purpose of declaring the civil rights of the parties and for the purposes of ensuring that the law of the land is implicitly observed and that the various tribunals and public authorities are kept within the limits of their jurisdiction. In a proceeding under Article 226 the High Court is not concerned with the determination of the civil rights of the parties; the only object of such a proceeding under Article 226 is to ensure that the law of the land is implicitly obeyed and that various authorities and tribunals act within the limits of their respective jurisdiction. Hence, the proceeding in the High Court for grant of a writ under Article 226 of the Constitution is not a 'civil proceeding' within the meaning of Article 133 of file Constitution.'

9. The aforesaid Patna authority was considered and dissented from in C. Dhanalakshmi Ammal v Income lax Officer, AIR 1958 Mad 151 wherein it was held that if a proceeding, in a petition, under Article 226 of the Constitution, relates to the adjudication of rights in properly or other civil rights, the proceeding will be a civil proceeding. It was observed:

'It may he true that under Article 226 of the Constitution this Court never declares the civil rights of the parties hut this Court does in proper cases enforce such rights in case of infringement of civil rights of parties, for example, the right to properly. It is also clear that various tribunals and public authorities are entrusted with the duly of adjudicating between rival claims to property.

A petition under Article 220 of the Constitution to quash a decision of one such tribunal would certainly pertain to the civil rights of the parties. Nor do we agree that an application for the issue of a writ under Article 226 of the Constitution can never he a proceeding of the High Court in the exercise of its civil jurisdiction.'

10. (S) AIR 1957 Pal 102 was also, dissented from in Dhanalakshmi Vilas Cashew Co v. President, Cashew Industries Staff Association. AIR 1962 Ker 1 (FB). The Kerala High Court held that if a right to property or any other civil right is involved in a proceeding, under Article 226 of the Constitution, then the proceeding will he a civil proceeding.

11. It may, also, he pointed out that in many cases, the Hon'ble Supreme Court had entertained appeals, from orders, on the basis of cerlifieales. granted under Article 133(1). Reference, in this connection, may be made, besides other cases, to S. Partap Singh v. State of Punjab. AIR 1964 SC 72: State of Orissa v. Ram Chandra Dey AIR 1964 SC 685, S.R. Tewari v. The District Board. Agra, AIR 1964 SC 1680; State of Punjab v. Suraj Parkash Kapur, AIR 1903 SC 507: Sobhraj Odharmal v. Stale of Rajasthan. AIR 1963 SC 640. It was not questioned, in the above cases, that the proceedings, under Article 226 of the Constitution, were not civil proceedings.

12. The view expressed in AIR 1958 Mad 151 that if a proceeding, in a petition under Article 226 of the Constitution, involves rights to property or any other civil rights, the proceeding will be a civil proceeding, appears to be correct. I am in respectful agreement with that view.

13. In the instant case, the proceeding, in the previous petition involved rights to property, namely the amount of compensation. The proceeding was therefore, a civil proceeding.

14. The plea, urged on behalf of the respondents, that the decision of this Court, dated the 31st July 1964, passed in the previous petition, was neither a judgment not a decree nor a final order, within the meaning of Article 133(1) of the Constiution has got force. In order that a decision may come within the purview of the word 'judgment' 'decree' or 'final order', as used in Article 133(1) of the Constitution, the decision must finally determine the rights of the parties or of its own force must affect their rights vide Prem Chand v. State of Bihar. AIR 1951 S. C. 14; AIR 1962 Ker 1 (FB) supra, AIR 1958 Mad 151 supra, Bhagwan Dass and Co. Private Ltd., Dehradun v. Income-Tax Officer, Dehradun, AIR 1958 All 800, Kapur Singh v. Union of India, (S) AIR 1957 Punj. 173 (FB), and State of Punjab v. Sodhi Sukhdev Singh, AIR 1960 Punj 487.

15. The Question, which requires determination, is whether the decision dated the 31stJuly, 1964, of this Court, in the previous petition, finally determined any right of the parties,to the dispute. This Court had simply decided that the Collector was not in error in depositing only 2/5th share of the compensation and not the whole amount. This Court had notdetermined any rights of the parties to the compensation. The decision of this Court cannot,of its own force, affect the rights of the parties, regarding compensation. It follows, from theabove, that the decision of this Court dated the 31st July 1964 does not fall within the purview of the word 'judgment' or 'decree' or 'final order' as used in Article 133(1) of theConstitution The petitioners are not, therefore, entitled to gel a certificate of fitness to appealagainst the above decision under that Article The petition is dismissed with costs.


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